PROGRAMMATIC AGREEMENT

among

VERMONT STATE HISTORIC PRESERVATION OFFICER,

BURLINGTON COMMUNITY AND ECONOMIC DEVELOPMENT OFFICE

and

THE ADVISORY COUNCIL ON HISTORIC PRESERVATION

for the

ADMINISTRATION OF THE

BURLINGTONCOMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM

November 1, 2017

1

BURLINGTON COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM

PROGRAMMATIC AGREEMENT

WHEREAS4

STIPULATION5

I. QUALIFIED PROFESSIONALS5

II. EXEMPT PROPERTIES AND ACTIVITIES6

III. ROLES OF SHPO AND CEDO6

IV. IDENTIFYING AND EVALUATING HISTORIC PROPERTIES7

  1. Preliminary step in identifying potential historic properties
  2. Identifying and evaluating historic buildings or structures
  3. Identifying and evaluating archaeological resources
  4. Public Notification of National Register Determinations
  5. Disagreement about National Register Eligibility
  6. Presence of Historic Resource

V. TREATMENT OF HISTORIC PROPERTIES 10

  1. Building rehabilitation
  2. Scattered site projects
  3. Designing new construction
  4. Protection of archaeological resources
  5. Planning Grants
  6. Relocating historic and contributing buildings
  7. Demolition
  8. Disaster Response

VI. RESOLVING ADVERSE EFFECTS13

VII. PUBLIC INVOLVEMENT14

VIII. DISCOVERY OF HISTORIC PROPERTIES OR ARCHAEOLOGICAL SITES

DURING CONSTRUCTION15

IX. TREATMENT OF HUMAN REMAINS15

X. COORDINATION WITH OTHER FEDERAL SECTION 106 REVIEWS15

XI. ADMINISTRATIVE COORDINATION15

XII.MISCELLANEOUS PROVISIONS 16

  1. Modifications
  2. Dispute Resolution
  3. Training Workshops
  4. Monitoring
  5. Reporting Requirements

XIII. EFFECTIVE DATE AND DURATION17

XIV. AMENDMENTS17

  1. TERMINATION17

XVI. FAILURE TO COMPLY WITH AGREEMENT17

APPENDIX A.

HUD-FUNDED CDBG PROGRAMS EXEMPT ACTIVITIES

APPENDIX B.

FINAL ADVISORY COUNCIL ON HISTORIC PRESERVATION POLICY STATEMENT ON AFFORDABLE HOUSING AND HISTORIC PRESERVATION

(Advisory Council on Historic Preservation, Federal Register, February 15, 2007)

APPENDIX C.

RECOMMENDED APPROACH FOR CONSULTATION ON RECOVERY OF SIGNIFICANT INFORMATION FROM ARCHAEOLOGICAL SITES (Advisory Council on Historic Preservation, Federal Register, May 18, 1999, Appendix B)

APPENDIX D.

SECRETARY OF THE INTERIOR’S STANDARDS FOR REHABILITATION

APPENDIX E.
STANDARD MITIGATION MEASURES AGREEMENTS:
  1. Photographic Documentation
  2. Marketing and Sale
  3. Relocation
  4. Future Work on Buildings
  5. Public Education
  6. Popular Publications
  7. Interpretive Signage
  8. Exhibits
  9. Lectures/Tours
  10. Development of Historic Contexts
  11. Data Recovery of Archaeological Information
APPENDIX F.
WHEN TO CONSULT WITH TRIBES UNDER SECTION 106

APPENDIX G.

CEDO-Project Review Form

PROGRAMMATIC AGREEMENT

among

VERMONT STATE HISTORIC PRESERVATION OFFICER,

BURLINGTON COMMUNITY AND ECONOMIC DEVELOPMENT OFFICE

and

THE ADVISORY COUNCIL ON HISTORIC PRESERVATION

for the

ADMINISTRATION OF THE

BURLINGTON COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM

WHEREAS, the U. S. Department of Housing and Urban Development (HUD) has allocated EntitlementCommunity Development Block Grant (CDBG) funds to the City of Burlington Community and Economic Development Office (CEDO)in accordance with Title I of the Housing and Community Development Act of 1974, as amended; and

WHEREAS, pursuant to 24 CFR Part 58, HUD has delegated the responsibility for compliance with the requirements of Section 106 of the National Historic Preservation Act to recipientState agencies and local Participating Jurisdictions receiving funds from the CDBG program; and

WHEREAS, the implementation of the CDBG may have an effect upon properties included in or eligible for inclusion in the National Register of Historic Places (NRHP) pursuant to 36 CFR Part 800, implementing 106 of the National Historic Preservation Act (NHPA)(54 U.S.C. 306108); and

WHEREAS, CEDOintends to comply with the principles identified in the Advisory Council on Historic Preservation (Council)’s “Policy Statement on Affordable Housing and Historic Preservation” and other policy statements set forth in this Programmatic Agreement(PA) as published in the Federal Register on February 15, 2007 (72 Fed. Reg. 7387)(see Appendix B); and

WHEREAS, in accordance with 36 CFR 800,CEDOacknowledges and accepts the advice and conditions outlined in theCouncil’s “Recommended Approach for Consultation on the Recovery of Significant Information from Archaeological Sites” published in the Federal Register on May 18, 1999; and

WHEREAS, CEDO, the Council, and the State Historic Preservation Officer (SHPO) have determined that CEDO can effectively fulfill its Section 106 review responsibilities for CDBG activities if a programmatic approach is used, pursuant to 36 CFR §800.14, to delegate Section 106 compliance responsibilities to CEDO and to identify activities thatcan be excluded from the Section 106 review because they have limited potential to adversely affect historic properties; and

WHEREAS, CEDO will continue to conduct outreach and will actively seek and request the comments and participation of Indian tribes that attach religious and cultural significance to historic properties that may be affected by Undertakings funded under the terms of this Agreement; and

WHEREAS, CEDO acknowledges that Indian tribes possess special expertise in assessing the National Register eligibility of properties with tribal religious and cultural significance; and

WHEREAS, SHPO has delegated certain responsibilities for Section 106 project review to Vermont Division for Historic Preservation (VDHP) staff while retaining ultimate responsibility and signatory authority; and

NOW, THEREFORE, CEDO, the VERMONT STATE HISTORIC PRESERVATION OFFICER and the ADVISORY COUNCIL ON HISTORIC PRESERVATION do stipulate and agree that the City’s Community Development Block Grant (CDBG) Programshall be implemented and administered in accordance with the following stipulations in order to take into account the effects of undertakings on historic properties to satisfy the Agency’s Section 106 responsibilities.

STIPULATIONS

CEDO will ensure that the following stipulations are carried out.

I. QUALIFIED PROFESSIONALS

  1. Some projects may require that CEDO retain qualified professionals in architectural history/historic preservation or archaeology. CEDOwill contract with, or will ensure that Recipients of CDBGfunds contract with, qualified professionals who meet the Secretary of the Interior's Professional Qualifications Standards, found in 36 CFR 61 (48 FR 44738-9). The qualified professional will carry out reviews related to his/her profession that are required under the terms of this PA. The qualified professional shall have a clear understanding of how to interpret and apply the Secretary of the Interior's Standards and the National Register criteria, and have attended the annual VDHP Consultant Training.Responsibilities delegated to the qualified professional include:
  1. identifying and evaluating historic properties;
  2. reviewing plans and specifications;
  3. making recommendations for determinations of eligibility and effect;
  4. preparing comment letters and other documents for SHPO concurrence; and
  5. other tasks related to Section 106 compliance under this PA.
  1. CEDO shall contract with only those consultants identified by SHPO as “Vermont Community Development Approved Consultants.” This list is updated each October 1st.
  1. With advance approval of SHPO, qualified CEDO employees may perform select tasks identified in this PA, without retaining a qualified professional.
  2. To qualify, the CEDO employee must attend VDHP annual consultant training and Section 106 training with the Advisory Council on Historic Preservation or the equivalent, every five years.
  3. CEDO shall notify SHPO of the contracted qualified historic preservation professional or approved CEDO employee annually.
  1. The qualified professionalor approved CEDO employee shall consult with the VDHP when there is a potential for historic properties to be affectedas noted on the Section 106 ProjectReview Form (CEDO-PRF)and will continue throughout the course of consultation for project review.
  1. Should CEDO be unable to contract with qualified historic preservation professionals to carry out the identification and evaluation review pursuant to this PA, CEDOshall consult with SHPO to determine alternate administrative arrangements to complete the reviews required pursuant to this PA. CEDOshall notify the Council in writing of any alternate procedures approved by SHPO.

II. EXEMPT PROPERTIES AND ACTIVITIES

  1. The requirements for exempt properties and activities are as follows:
  2. Project does not involve ground disturbance;
  3. Project is not located in (or adjacent to) a Historic District or Designated Downtown;
  4. Project does not involve any buildings listed in or considered eligible for the National Register of Historic Places; and
  5. Project consists of rehabilitation of buildings or structures less than 50 years old.

If all the above criteria are satisfied, then such properties and activities are considered exempt from this PA. This determination is made by qualified professional/approved CEDO employee.

Historic properties are those that are listed in or eligible for listing in the National Register of Historic Places (NRHP), either individually or as part of a historic district. For purposes of this PA, a single historic property (a house, a bridge) or small grouping of resources (a farm complex) can be listed individually, using the primary resource as the identifier. A historic district is a geographically definable area, urban or rural, possessing a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united by past events or aesthetically by plan or physical development. All properties located within a historic district are classified as either contributing (historic) or non-contributing (non-historic).

  1. A project that does not satisfy all of the criteria listed in Section II(1), above, will nonetheless be exempt from this PAIF it is limited solely to the exempt activities listed in Appendix A. A qualified professional/approved CEDO employee can make this determination.
  1. For projects that are exempt under paragraph (1) or (2) above, a CEDO Project Review Form(CEDO-PRF) shall be completed to document the exempt determination. The CEDO-PRFshall be submitted to VDHP. No further review is required.
  1. In accordance with the Council’s Policy Statement on Affordable Housing and Historic Preservation (see Appendix B), for affordable housing projects that do not involve a building that is listed or considered eligible for listing in the National Register as an individual property or those possessing character-defining interior elements that have been identified to contribute to the significance of thehistoric district, review under this PA shall be limited to proposed changes to the exterior of the building or proposed changes that will be visible from the exterior.

III. ROLES OF SHPO AND CEDO

  1. CEDO shall retain a qualified professional/approved CEDO employee to: 1) identify the project’s area of potential effect; 2) identify and evaluate historic properties within the project’s area of potential effect; 3) make recommendations of a property’seligibility for listing in the National Register of Historic Places;4) evaluate and make recommendations regarding a project’s effect on historic properties; 5) develop appropriate treatment or mitigation measures to avoid, minimize, or mitigate determinedeffects; and 6) submit appropriate documentation of these actions for concurrence bySHPO as set out in this PA.
  2. SHPO, through VDHP staff, shall assist CEDO in this process by providing available information and consulting with CEDO and the qualified professional/approved CEDO employee when asked or when required under the terms of this PA.
  3. CEDOshall maintain project files and report on program activity as required in this PA.
  4. If the project requires a State Land Use (Act 250) permit, CEDO should consult with VDHP regarding identification and treatment of historic properties within that process and in coordination with Section 106 Review. Although a consultant’s report may be used for supporting documentation in the Act 250 process, it is VDHP’s responsibility to provide recommendations to the District Environmental Commission, the entity which issues a permit with appropriate conditions. Therefore, it is important for the qualified professional/approved CEDO employee and VDHPto work together in a coordinated effort.
  5. Similar coordination is required with VDHP and the National Park Service for projects that will utilize Rehabilitation Investment Tax Credits.

IV. IDENTIFYING AND EVALUATING HISTORIC PROPERTIES

  1. Preliminary step in identifying potential historic properties.
  1. All Projects will require a CEDO Project Review Form (CEDO-PRF). During the review stage of the Environmental Review process, CEDO shall consult with VDHP to identify information in existing inventories on historic properties that may be affected by projectactivities. This should include but not be limited to:
  1. current listings of the NRHP;
  2. Vermont Historic Sites and Structures Survey and State Register of Historic Places;
  3. Vermont Archaeological Inventory;
  4. properties recommended as meeting the National Register Criteria for Evaluation and determined to be potentially eligible for the NRHPby VDHP; and
  5. any other readily available information in SHPO’s Online Resource Center files.
  1. VDHPshall also apply the environmental predictive model to determine if the project area contains potential archaeological sites.
  1. VDHP shall provide any applicable information identified in the above background review to CEDO.
  1. In the case of scattered site housing rehabilitation or scattered site economic development projects, where the specific locations of projects are unknown at the preliminary reviewstage, CEDO, qualified professional/approved CEDO employee if needed, shall conduct the above background review once specific locations are known.
  1. CEDO may submit recommendations for eligibility for properties to VDHP concurrently with proposed treatment plans to expedite the Section 106 review. After a 15-day initial review, VDHP shall inform CEDO of any missing or additional documentation required for evaluation. VDHP shall provide written comments to CEDO within 30 days following receipt of adequate documentation.
  1. If it is determined that there is a potential for historic architectural and/or archaeological properties to be affected, a qualified professional must be retained or an approved CEDO employee assigned to review the project.
  1. Identifying and evaluating historic buildings or structures.
  1. For properties not listed in the NRHP and not exempt under Section II of this Agreement, the qualified professional/approved CEDO employee shall evaluate the propertiesand make recommendations for National Register eligibility based on the NRHPCriteria for Evaluation.
  1. The qualified professional/approved CEDOemployee shall submit a recommendation of eligibility toVDHPfor concurrence. This must occur prior to any construction activities commencing.
  1. If VDHP concurs with the recommendation of eligibility, then proceed to Section IV(3). If there is not agreement regarding a recommendationof eligibility and VDHP does not concur, the procedure for resolution is set forth in Section IV(5).
  1. For evaluation of properties in potential historic districts, the qualified professional shall consult with VDHP for guidance on what additional information and materials the professional may need to provide.
  1. Documentation: The qualified professional/approved CEDO employee shall submit the evaluation documentation to VDHP. For eligible buildings or structures not included in the Vermont Historic Sites and Structures Survey, the documentation shall include a completed Survey form and digital photograph. VDHP may specify an alternative documentation format.
  1. Identifying and evaluating archaeological resources.

a.Projects involving ground-disturbing activities that are not identified as exempt activities in Appendix A and were determined to have the potential to yield information about archaeological properties that may be affected, as notedon the CEDO-PRF, must be reviewed and approved by a qualified archaeological professional. Ground-disturbing activities include, but are not limited to:

  1. new construction;
  2. construction of roads and parking lots;
  3. land clearance and tree cutting in preparation for construction;
  4. excavation for footings and foundations; and
  5. installation or replacement of sewer, water, storm drains, electrical, gas, leach lines, and septic tanks, unless included in Appendix A:exempt activities.

Notwithstanding the above, and in accord with the Council’s Policy Statement on Affordable Housing and Historic Preservation, archaeological investigations are not required for affordable housing projects limited to rehabilitation and requiring minimal ground disturbance, which is generally defined as covering an area no more than 10 by 10 feet and no deeper than 6 inches.

  1. Identification and evaluation of archaeological resources must be carried out by CEDO through the use of a qualified archaeological professional as early as possible during project planning. The qualified professional and CEDOshall consult with VDHP throughout this process.

c.It is desirable and most cost effective at any stage of study outlined in 3d, e, and f (below) to avoid sites through appropriate conditions placed on the project design and construction specifications. Such conditions to preserve the site will be negotiated between CEDO and the qualified professional. The Advisory Council’sRecommended Approach for Consultation on Recovery of Significant Information from Archaeological Sites (1999 or most recent version)shall be followed (Appendix C).

d.If VDHP’s background review during the CEDO-PRF process identifies potential archaeological sites within the project area, VDHPshall recommend that CEDO retain a qualified archaeological professional to conduct an Archaeological Resources Assessment (ARA). The purpose of anARAis to identify areas that have been significantly disturbed in the past; specific areas that are likely to contain archaeological sites; and potential archaeological issues that must be considered during project planning. In some cases, VDHP may conclude that there is enough information to initiate a Phase I site identification study without completing an ARA. In this case, and if any archaeologically sensitive areas identified in an ARA cannot be avoided, then proceed to Phase I as outlined below.

e.Phase I Identification study. If the ARA concludes that potential archaeological sites exist within the project area and may be affected by the project, CEDO shall retain a qualified archaeological professional to conduct a Phase I Identification study. If an archaeological site is identified and cannot be avoided, then proceed to Phase II as outlined below.

f.Phase II Evaluation Study. CEDO shall retain a qualified archaeological professional to conduct a Phase II Evaluation study to determine whether the site meets the criteria for inclusion in the National Register of Historic Places. If the site cannot be avoided and will be destroyed in whole or in part by the project, then CEDO and the qualified archaeological consultant shall develop a mitigation plan in consultation with VDHP (See Section VI (4)).

g. Documentation. All archaeological studies must meet the meet the Guidelines for Conducting Archaeological Studies in Vermont(most recent version) and the Secretary of the Interior’s Standards and Guidelines for Archeology. CEDO shall provide copies of all reports and any associated Vermont Archaeological Inventory forms in digital formats to VDHP. VDHP may specify alternative documentation formats.

4.Public Notification of National Register Determinations.

a.Prior to making recommendations for NRHP eligibility for a non-listed property, the qualified professional/approved CEDO employee shall notify the Owner and Certified Local Government (CLG) representative, and invite them to provide comments to the qualified professional and VDHP concerning the historic, architectural and/or archaeological significance of the property.